The Sedition Act

But Republican opponents argued the act was a grave offense to the free speech guarantees of the First Amendment

Debate over Sedition Act began to establish a more modern understanding of the meaning of free speech

Most important, it is not surprising that Congress would pass a Sedition Act in 1798 that imposed harsh restrictions on speech. The Sedition Act was blatantly political; it was designed to silence the opposition press that was critical of the administration's foreign policies. By today's standards we see this as a flagrant violation of the First Amendment. But Federalists in Congress argued that it was consistent with free speech traditions that did not protect sedition. Moreover, Federalists argued, the Sedition Act they forced through Congress established more generous protections for speech than British common law. Under the Federalist act truth was a defense; a person could not be convicted if his comments were proven true. In addition, the state had to prove malicious intent for a charge to stick, and finally, the act also allowed juries to rule on the question of law as well as the facts. That is, citizen-jurors were given the authority to determine not just whether a certain statement was made, but whether it really constituted sedition.

In this sense, the Sedition Act, despite its flagrant violation of today's standards, reflected a certain "original meaning" of the First Amendment. In many ways it encapsulated the limited protection crafted by Congress, and the persisting influence of the British common law tradition, but as modified in America by the Zenger trial. Speech was protected, but only from the federal government, and only from some sort of prior restraint. Seditious speech could be punished, but truth was a defense, malicious intent must be shown, and juries not judges got to make this call.

On the other hand, the controversy surrounding the Sedition Act spoke to a second "original meaning." As politicians and newspaper editors most directly affected by the act protested its terms, they called for a very different sort of speech protection. They suggested that free speech needed to mean more than no prior restraint—that speech would only be free if not punishable. James Madison argued, for example, that the British tradition was not suitable to America; he suggested that speech had to be protected against retaliatory action, not just prior restraint. Others argued that political speech, given its fundamental role within a republic, required blanket, absolute protection. Even if false and filled with error, political speech must be tolerated as the price paid for the free exchange of political ideas. One writer, Tunis Wortman, went so far as to argue that seditious libel was impossible in a republic. If the government was the people—an institutional expression of the public's opinion and will—how could the government be criminally threatened by the public in the expression of its views?

Wortman went further than most. He suggested that literature, science, and the arts were among the "foremost benefits derived from society," and consequently, the government that "interferes with the progress of opinion, subverts the essential order of the social state." Far more than most of his contemporaries, Wortman saw thought and expression as natural rights, not just civic rights. And while he aimed most of his comments toward political speech, he suggested that political inquiry could not be separated from more general intellectual rights. "To promote the improvement of Society it is essential that Mind should be free," Wortman argued. And unless people were allowed to "reflect and communicate their sentiments upon every topic," all progress in all areas of knowledge would be threatened.38

In short, in these ideas circulating in the wake of the Sedition Act we can find a set of meanings more consistent with those currently held by the public and the courts. In Wortman's expansive view of rights of inquiry and communication, we can see the seeds of a First Amendment right broad enough to protect all sorts of expression for all sorts of people. These ideas were not universally held in 1800, nor were they voiced a decade earlier when the amendment was being drafted. Yet we were still within just a few years of the founding moment, and the conversation was framed by the recognition that Americans needed to carve out their own definition of speech, not just borrow one from the British.

So does that mean that within the original meaning of the First Amendment there was a more comprehensive protection for speech? That depends on your answer to another question of interpretation: what is the meaning of original?